Introduction
Eminent domain refers to the government’s authority to take private property for public use. While Americans have private property rights in the U.S., certain government entities have the right to take private property if the situation meets strict requirements.
One of the biggest misunderstandings surrounding eminent domain in Arizona relates to who can exercise this law. In the U.S., federal, state, and local governments have the power to exercise eminent domain.
Arizona state laws and the Arizona Constitution forbid the use of eminent domain exclusively for private purposes. Instead, it can only be employed to serve public needs, such as utility installation, infrastructure development, transportation, or other public projects designed to benefit society as a whole.
What Is Eminent Domain?
Eminent domain is defined as the power of the U.S. government to take private property for public use without the property owner’s consent. While a government entity does have the right to take private property without the express permission of the property owner, this does not mean that the government can simply show up and take the land right away. The government entity must first go through a series of steps.
First, the government must determine what type of taking it would like to exercise. A Complete taking occurs when the government takes an entire parcel of land. When only some of the property is taken, it is known as a partial taking. In addition, a taking may be either permanent, in which the property never goes back to the previous owner, or temporary, which occurs when the land is only taken for a specified period of time.
For an eminent domain to occur in Arizona, the government entity must show that the reason for the taking is for public use and that the property owner has been offered fair compensation.
What Is Considered Public Use?
For a government entity to legally take private property, it must prove that it is for a legitimate purpose. Arizona eminent domain law only authorizes a government entity to exercise eminent domain power for public use.
What exactly does public use mean? Most often, public use as it relates to eminent domain refers to necessary infrastructure projects, such as broadband and telecom, electrical transmission lines, runways and airports, railroads, roads and highways, dams and reservoirs, and pipelines for the transmission of gas, sewage, water, oil, or other essential commodities.
Where the confusion lies is the introduction of private companies into these public-use projects. It is common for the government to hire a private sector company to build
infrastructure. As companies in the private sector are generally willing to build and maintain essential public infrastructure using their own capital, taxpayers can save a significant amount in ongoing maintenance costs.
Some examples of public use projects common in eminent domain cases include:
- Airport projects
- Pipeline projects
- School and park projects
- Railroad projects
- Municipality projects
- Road projects
- Underground gas storage projects
- Army Corps projects
What Is Just Compensation?
The final clause of the U.S. Constitution’s Fifth Amendment states “…nor shall private property be taken for public use, without just compensation.” Known as the “taking clause,” this passage means that the government entity taking the property is required to provide the property owner with fair payment.
It can be much more difficult to determine just compensation than it is to determine public use. In simple terms, just compensation generally refers to the value of the entire property or fair market value. To determine the fair market value of a property, the government entity exercising eminent domain will usually hire a professional appraiser to calculate the land’s value.
Other factors are also considered when calculating “just compensation,” including:
- Is the taking permanent or temporary?
- Could the property’s zoning change?
- Does the property currently produce income?
- Will a partial taking impact the value of the remaining land?
- What do similar properties in the area sell for?
Can Eminent Domain Be Used for Private Use?
As a general rule, eminent domain cannot be used for private use. However, there are always some exceptions to the rule. Under certain circumstances, private entities can use or benefit from the use of eminent domain. However, there are generally strict legal requirements to ensure that the rightful landowner’s rights are not violated.
There are one of two ways that private companies can acquire property via eminent domain. First, they can exercise inherent or delegated eminent domain authority, such as through a utility company. The second way involves being the recipient of lands that are acquired by an entity with eminent domain authority, such as a redevelopment commission.
Whether eminent domain can be used for private use will depend on if the private company has been delegated this authority by law and whether the projects meet the definition of “public use.”
Can I Fight a Government Taking?
While a property owner cannot technically refuse eminent domain if the government entity doing the taking has met the legal requirements to take the property, it may be possible to fight eminent domain if the property does not meet the requirements for public use or necessity.
First, if you receive a letter of intent from a government entity, gain a solid understanding of why the government wants your property and for what public use. It is important to contact an Arizona eminent domain attorney right away to ensure that the situation is dealt with swiftly and that your rights are protected.
Do not speak directly to or negotiate with the government entity. Instead, have your attorney deal with the government and negotiate any dealings on your behalf. In addition, you do not want to outright agree with the government’s assessment of your property value. Speak with your attorney about obtaining your own assessment.
Consult with an Arizona Eminent Domain Attorney
Facing eminent domain is never easy but with the help of an experienced Arizona eminent domain attorney, the process can go much more smoothly. To learn more about the private use of eminent domain or to speak with an attorney, contact JacksonWhite at (480)467-4334.